Customs, Excise and Gold Tribunal - Calcutta
M/S. Super Forging & Steels Ltd. vs C.C.E., Calcutta-Ii on 10 July, 2001
Equivalent citations: 2002(140)ELT236(TRI-KOLKATA)
ORDER
Archana Wadhwa
1. After dispensing with the condition of predeposit of penalty amount of Rs. 25,000/- (rupees twenty five thousand only) I take up the appeal itself with the consent of both sides.
2. It is seen from the impugned order of the Commissioner (Appeals) that he has dismissed the appeal filed by the appellants under the provisions of Section 35F of the Central Excise Act without first passing any order on the stay petition filed by the appellants. He has observed that stay petition was posted for hearing on two occasions when the appellants neither appeared nor made any request for adjournment. Shri P.K. Das, learned Advocate appearing for the appellants however, submits that an application was filed in the office of the Commissioner (Appeals) for seeking adjournment of hearing fixed on 18.9.2000 but this fact has not been taken into consideration by the Commissioner (Appeals). However, he submits that in any case the Commissioner (Appeals) should have passed an order on the stay petition instead of straightaway dismissing the appeal for non-deposit.
3. I fully agree with the above submission of the learned Advocate. It is admitted that an application for dispensing with the condition of predeposit of penalty amount was filed by the appellants. Even if the appellant did not appear before the Commissioner (Appeals) on the date fixed for disposal of the stay petition the Commissioner (Appeals) was under legal obligation to pass order on the stay petition. It is however, seen that the matter was adjourned and again posted for disposal of the stay petition. As such when the hearing was fixed for passing order on the stay petition, dismissal of the appeal for non-compliance with the provisions of Section 35F was not justified. As such I set aside the impugned order and remand the matter to the Commissioner (Appeals) for first deciding the appellants prayer for dispensing with the predeposit condition to deposit of Rs. 25,000/- penalty. Appeal is allowed by way of remand. Needless to say that appellants would be given an opportunity of hearing before disposal of the stay petition, when the appellant would appear on the date so fixed by the Commissioner (Appeals).
(Dictated & pronounced in Court)